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A Modest Proposal for Human Limitations on Cyberdiscovery

I show my Civil Procedure students a video on electronically stored information ("ESI") created by Jason Baron and Ralph Losey. The video, set to the type of pulsating electronic music normally heard prior to kickoff, sets forth a series of frightening factoids about ESI. For Baron and Losey, the "near future" is that litigants cannot "afford the whole truth" but they suggest (with, I hope and suspect, tongues in cheek) that the "far future" is discovery conducted by artificial intelligence agents. The answer to the challenges of E-discovery, in other words, is the creation of E-lawyers.

Absent a disaster that sends civilization to the stone ages, the digitalization of life is here to stay. The complexity of managing ESI in litigation is almost certain to grow as what we can create and where we can send it grows increasingly robust. While some of these advances may aid in the management of e-discovery, it seems a safe bet that the location and production of ESI is going to get much harder before it gets appreciably easier. If defined as access to "all relevant documents," it may be that we cannot afford "the whole truth."

But it is less obvious that, because of this, much of the "truth" is really lost. The idea, undergirding much of discovery practice, that any information anywhere that might conceivably be helpful on any issue ought to be available for perusal is a notion that only lawyers could love. While the growth of ESI is irresistible, it faces an unmovable limiting principle. However voluminous and dynamic electronic information may become, human beings remain blissfully limited in their capacity to process information. As long as litigation remains concerned with the endeavors of mortals, the percentage of nonduplicative ESI that is in fact relevant to the "whole truth" is likely to remain rather limited.

The development of E-discovery principles and rules has been an effort to balance cost against the value of the information utilizing the traditional tools of judicial management of discovery, i.e., ad hoc and factually intensive balancing. This will continue to be necessary. But I want to suggest another paradigm. As ESI multiplies, organizations will have to find ways to retain and have access to that information which is necessary to conduct business, i.e., to sell and design things, to hire and fire people and to do all the other things that happen in the real world and become the subject of litigation. There ought to be, at minimum, a strong presumption that the retention and retrieval policies created to manage this information outside the litigation process are likely to catch almost all the information that is relevant within it.